- 1 - HC-KAR NC: 2025:KHC:31804 CMP NO.87 OF 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S. INDIRESH CIVIL MISCELLANEOUS PETITION NO.87 OF 2024 BETWEEN: DR. MAHESH T. BHAT S/O LATE DR. T.K. BHAT AGED ABOUT 49 YEARS, R/AT 'TULASI', BEHIND KAMALA TOWERS, SULTAN BATTERY ROAD, URVA MARKET, MANGALURU - 575 006. …PETITIONER (BY SRI. YASHODHAR HEGDE, ADVOCATE) AND: DR. GANESH T. BHAT S/O LATE DR. T.K. BHAT AGED ABOUT 47 YEARS, R/AT 'GANESH PRASAD', URVA MARIGUDI TEMPLE LANE, SULTAN BATTERY ROAD, URVA MARKET, MANGALURU - 575 006. …RESPONDENT (BY SRI. K. RAVISHANKAR, ADVOCATE) THIS CIVIL MISCELLANEOUS PETITION IS FILED UNDER SECTION 11(6) OF THE ARBITRATION AND CONCILIATION ACT, 1996, PRAYING TO APPOINT MR. S.R. SOMASHEKHARA, PRINCIPAL DISTRICT JUDGE (RETIRED), BENGALURU AS A SOLE ARBITRATOR IN TERMS OF CLAUSE 21 OF THE DEED OF RECONSTITUTION OF THE PARTNERSHIP DATED 19TH MARCH, 2020 VIDE ANNEXURE-C TO ADJUDICATE UPON THE DISPUTES WHICH HAVE ARISEN BETWEEN THE PETITIONER AND THE RESPONDENT AND REFER THE DISPUTE FOR ARBITRATION BEFORE THE ARBITRATION AND CONCILIATION CENTRE, BENGALURU (DOMESTIC AND INTERNATIONAL). Digitally signed by SHARMA ANAND CHAYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:31804 CMP NO.87 OF 2024 THIS PETITION COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S. INDIRESH ORAL ORDER This petition is filed by the petitioner seeking appointment of the Sole Arbitrator in terms of Clause 21 of the Deed of Reconstitution of the Partnership dated 19th March, 2020 (Annexure-C) to adjudicate upon the disputes which have arisen between the petitioner and the respondent. 2. Heard Sri. Yashodhar Hegde, learned counsel appearing for the petitioner and Sri. K. Ravishankar, learned counsel appearing for the respondent. 3. Sri. Yashodhar Hegde, learned counsel appearing for the petitioner reiterates the facts of the case and submits that, originally the subject land belonged to the mother of the petitioner and the respondent and she died on 26th September, 2017 leaving behind the testament dated 28th June, 2007 (Annexure-B). By referring to the Will dated 28th June, 2007 (Annexure-B), learned counsel appearing for the petitioner submitted that the wish of the testator is to constitute a partnership firm as "BHAT'S NURSING HOME" and categorically - 3 - HC-KAR NC: 2025:KHC:31804 CMP NO.87 OF 2024 stated that the right over the land and building in relation to the Nursing Home shall be split in to three divisions as per the Will in favour of children. It is also submitted by learned counsel appearing for the petitioner that the notice for appointment of arbitration was issued on 23rd August, 2023 (Annexure-D) and 03rd October, 2023 (Annexure-E). 4. Learned counsel appearing for the petitioner further submitted that the petitioner has filed two suits in Original Suit No.492 of 2020 before the Civil Court, Mangaluru, seeking relief of injunction against the respondent and Original Suit No.130 of 2021 before the Senior Civil Judge, Mangaluru, seeking relief of partition and separate division by metes and bounds in respect of the subject land and therefore, the subject land being excluded by the testator in the Will dated 28th June, 2007 (Annexure-B), this Court is required to appoint Arbitrator for resolution of disputes between the parties in terms of Clause 21 of the Deed of Reconstitution of the Partnership dated 19th March, 2020 (Annexure-C). 5. Per contra, Sri. K. Ravishankar, learned counsel appearing for the respondent reiterates the statement of - 4 - HC-KAR NC: 2025:KHC:31804 CMP NO.87 OF 2024 objections and raised the preliminary objection that the claim made by the petitioner, seeking appointment of Arbitrator is barred by limitation. Secondly, he submitted that, as the petitioner has filed suit before the competent Civil Court, the parallel proceedings cannot be continued by appointing an Arbitrator. Learned counsel appearing for the respondent further invited the attention of the Court to the Section 69 of the Indian Partnership Act, 1932 and accordingly, sought for dismissal of the petition. In this regard, learned counsel Sri. K. Ravishankar, places reliance on the judgment of Jammu & Kashmir and Ladakh High Court in the case of P.K. GLOBAL TRENDS PRIVATE LIMITED vs. AIRPORT AUTHORITY OF INDIA reported in 2022(1) SriLJ 385 and judgment of Hon'ble Supreme Court in the case of BHARAT SANCHAR NIGAM LTD. AND ANOTHER vs. M/S. NORTEL NETWORKS INDIA PVT. LTD. reported in (2021)5 SCC 738 and contended that the petition does not survive for consideration since the issue raised by the petitioner has become deadwood. Accordingly, by referring to Section 5 of the Limitation Act, 1962, he sought for dismissal of the petition. - 5 - HC-KAR NC: 2025:KHC:31804 CMP NO.87 OF 2024 6. In the light of submission made by learned counsel appearing for the parties, it is not in dispute that the subject matter of the land is belonged to mother of the petitioner and the respondent and she died leaving behind the Will dated 28th June, 2007 (Annexure-B). The clause 4 of the said Will reads as under: "4. The land and building belongs to me as per court voluntary partition deed and the firm is paying the rent to me. The constructions of the buildings do not permit the physical partition on equitable basis to all the 3 sons. As such 1/3 of the right of these land and building shall go to each son and any income derive from the property shall be distributed among the three sons on 1/3 basis." 7. On careful examination of disposition of the property by the mother of the petitioner and the respondent would makes it clear that the land and building belonged to the testator as per the partition deed and the usufructs is being paid to her. In that view of the matter, by looking into the prayer made in Original Suit No.492 of 2020 and Original Suit No.130 of 2021, I am of the view that the relief claimed in the suits does not make any alteration in respect of the cause of action arise insofar as the appointment of Arbitrator is concerned. - 6 - HC-KAR NC: 2025:KHC:31804 CMP NO.87 OF 2024 However, though the partition deed referred to by the parties and the property is undoubtedly belonging to the mother of the petitioner and the respondent, the contentions raised by learned counsel appearing for the respondent cannot be accepted. 8. In respect of the plea raised by learned counsel appearing for the respondent that there is a dissolution of the partnership firm during the year-2020 and the Arbitrator has no jurisdiction in view of the issue as raised by the petitioner is barred by the limitation, I have carefully examined the Article 5 of the Schedule 1 to the Limitation Act, 1963, wherein it is stated that, for rendition of account and a share of the profits of a dissolved partnership, the limitation is three years from the date of the dissolution of partnership. 9. 9. In this regard, I have carefully considered the plea raised by the petitioner in the Notices dated 23rd August, 2023 (Annexure-D) and 03rd October, 2023 (Annexure-E), wherein the petitioner is seeking appointment of the Arbitrator for the rendition of accounts till the winding up of the firm. In that view of the matter, though the rendition of accounts is sought for from 01st April, 2020 in respect of the winding up of the - 7 - HC-KAR NC: 2025:KHC:31804 CMP NO.87 OF 2024 firm, the claim made by the petitioner cannot be considered as reached finality and therefore the petition is not barred by limitation as the claim made in the aforesaid notices is subsisting in view of the recitals in the Will dated 28th June, 2007 (Annexure-B) said to have been executed by the mother of the petitioner and the respondent. Hence, the objection raised by the respondent cannot be accepted. Though the learned counsel appearing for the respondent referred to the judgments stated above, however, it is a settled principle in law that, where there are two forums are available for the parties, then the principles of doctrine of election is made applicable and it is for the aggrieved party to choose a particular forum for resolution of the dispute. In that view of the matter, looking into the prayer made in Original Suit No.492 of 2020 and Original Suit No.130 of 2021, the said claim would not come in the way of resolution of the dispute by the Arbitrator. Accordingly, I find force in the submission made by learned counsel appearing for the petitioner. In the result, I pass the following: O R D E R (a) Civil Miscellaneous Petition allowed; - 8 - HC-KAR NC: 2025:KHC:31804 CMP NO.87 OF 2024 (b) Sri. Radhakrishna Holla K., District Judge (Retired) is appointed as Arbitrator for resolution of the dispute between the parties in the venue which is being fixed by the Arbitrator, after issuing notice to the parties and the sitting will be at Mangaluru; (c) The observation made in this petition shall not influence the learned Arbitrator for resolution of the dispute between the parties; (d) All contentions of the parties are kept open. SD/- (E.S.INDIRESH) JUDGE ARK List No.: 1 Sl No.: 22